RAILWAY DEVIATION FATALITY.

Taranaki Daily News, Volume L, Issue 61, 16 October 1907, Page 3

RAILWAY DEVIATION FATALITY.

ARBITRATION' COURT PROCEEDINGS Before His Honor Judge Sim (President) and Messrs. Samuel Brown and Henry Slater. The Arbitration Court sat in New I lymouth on Tuesday morning. There was only one case—that of Wilson v. Knight, claim for compensation in respect of the death of William (Jeorge Wilson on the railway deviation works at New Plymouth in January last The claimant was Hugh Wilson, anil the amount of the claim £3OO, the partitalars showing it was proposed to devo'o tIOO for the benefit of Alice Wilson the elder and £2OO for the benefit of CHI I',. sori the younger, Florence, Sibyl, Elizabeth, Harold, and Myrtle Vilson until the youngest should have reached the age of 21 years, and thereafter for the benefit of Florence AVilson. The claimant was unrepresented bv counsel, Mr. A. H. Johnstone (Malono, Anderson and JohiHtone) appeared for the respondent. The claimant first called the rospo:!- i dent, George Knight, a contractor. Ilis evidence was that on oth November in i last year he employed the deceased Wil-! son as a temporary hand, and as he got' I a rush of work jiist then he kept him I |on for a time. The. Railway Depart-; ment was at that time making a cutting j j on the railway deviation, and required I a horse and driver for the hauling or 1 j trucks. Deceased and the horse were hired to them at the rate of 12s per ; | day, and worked at that employment ! j from Dc-ceml>er Oth to January sth," when i he was accidentally killed. Whilst the ! deceased was working there he was directly under the control of the Railway Department, who ordered his work. Witness had absolutely no control over him in working hours. In answer to the Court, Mr. Johnstone stated the Ocean Accident Insurance' Company denied liability. j The claimant, Hugh Wilson, of Christ- j church, and formerly of Ne-.v Plymouth, I father of the deceased, gave evidence j that the family was to some extent dependent upon the earnings of the do-; ceased, who had for some time been in ! the habit of sending home part of his ' earnings. The money came to his i mother (witness' wife), who used it in I the ordinary housekeeping. Witness said he had now at home three children going I to school, two girls (aged 21 and 18) i earning 10s and 8s a week respectively, I and a crippled girl who would never lie j fit for work. His daughters had only j gone to work since the death of their brother. Two sons and a daughter were j married and independent of him. He j had no means apart from his earnings; neither had his wife. To Mr. Johnstone —He had been in | New Plymouth for thirteen years, in ; regular work. Had left here to better J himself. Was recsiving £3VsGaaweek regularly. Deceased had sent money • from Auckland. He did not know how his son had been employed, or for whom, in Auckland. He had been a general j laborer. Could not say if he owed money when he died. Witness admitted that he had in days gone by engaged in bookmaking, but he had given that up. He could not say what his son's habit.s ; were in regard to money. When witness was engaged in dairy-farming and milk-vending, his son (deceased) had treated him very badly. His son had had the collecting of the accounts, and his manner of doing it practically ruined him. He had had to take out a 'prohibition order against deceased, because he was wasting his means in drink. Was I positively certain he had not "kicked i him out." Could not say if the boy 1 was practically destitute when ho left for Auckland. He had no letters now I that he had received from his son. In a January last witness had received the j leccascd's last week's wages from Mr. ] Knight, but had not paid his board or i :he funeral expenses. He had inquired jf the accident insurance agent here, an<l r bad seen Mr. Montefiore, the manager, 4 in Wellington. They had no quarrel. 1 A married daughter of the previous witness, with whom the. deceased had ] lived for about two months before bis t ieath, said the board (14s a week) had \ been paid regularly. She could not say i what he did with the rest of his earn- ( ings. He was of fairly regular habits. For the defence, Jlr. Johnstone called several witnesses to prove that the debased had been of intemperate habits, ' ;iven to thriftlessness, and not likely I ;o contrißute much to Vs family's main;enance; further, that De'icre he left * Plymouth for Auckland he had J ieen about penniless, and had liegged a eave to sleep in a carpenter's workshop. I Charles Cratch, inspector on the New ' Plymouth railway deviation in Decern- ( jer and January last, stated that whilst the drivers of hordes for the trolleys 1 ,vere on the line they took their orders f ;rom the railway men. Knight did not ' interfere at all. He simply had to sup- ' ply a horse and driver at so much a day. * Wilson was driving. ' The question of proving dependency - was adjourned to Christchurch, where 5 the mother's evidence will be taken, * The claimant was ordered to pay to the Clerk of Awards £7 as security for re- J spondent's costs in engaging counsel to - cross-examine Mrs. Wilson. j Jlr. Johnstone, addressing the Court, ' submitted, as in his previous applica- . tion, that the deceased met his death J in an employment to which the Act did ' not apply. He quoted from the Act, 1 showing that it could not be made to i refer to drivers, but only to those em- ■ ployed on, in, or about industrial, com- < mercial, or manufacturing industries. 1 The employment of deceased could not 1 be brought under either of these heads. 1 Jlr. Brown: I may tell you for your own consolation, Jlr. Johnstone, that compensation has been paid to drivers ; before. In fact, one case was brought ■ against myself, and I had to pay. ' Jlr. plater said it was rather late in the day to raise such a defence. There had been several decisions of the Court under simitar- circumstances, and awards had been made. The President said tha£ Mr. Knight had been carrying on the business of a contractor. Passing on to a second contention, Mr. Johnstone submitted that the deceased had not been in the respondent's employment at all. The deceased had been hired to the Railway Department with a horse, and was worsting entirely for the Department. Jlr. Brown: Did the railway people pay him? jlr. Johnstone: No. Jlr.' Slater: >io, and they didn't engage him, either. Jlr. Brown: The Railway Department dealt entirely with Knight. Mr. Johnstone contended that Knight had nothing to do with the control of the work or of the men employed there. As a matter of law the deceased had been employed by the Railway Department. The Department had, 111 fact, employed both horse and driver. To elucidate the point, he submitted that, had the Department engaged the man without the horse there would have been no doubt of his employment. Jlr. Slater: Wilson was not od the railway books; Knight wasMr. Johnstone contended that the Railway Department had absolute con--1 trol over the deceased whilst working. 1 lie quoted cases bearing on the law ''f master and servant, relating to negli- ; genee, and also 011 the Employers' Lia- [ bilitv Acts. Even if the Court found that the deceased had been employed bv ' the respondent, and that the Act applied | in these circumstances, then he submitted that the Court would make an award for very slight compensation. The deceased had been a man of 23% yours of age, and in all probability would soon j have married and thus ceased to eonI tribute anything towards the expenses 1 of his father's household. The latter was a young man, in steady and remunerative employment, and evidently not in any very great need of assistance from this source. The bearing was then adjourned to Christchurch, to be resumed at the Decemhcr sessions.